CORRECTED OPINION

UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 97-4179

ANTHONY ZENONE,

Defendant-Appellant.

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 97-4190

MICHAEL ZENONE,

Defendant-Appellant.

Appeals from the United States District Court

for the District of Maryland, at Baltimore.

Frederick N. Smalkin, District Judge.

(CR-96-190)

Argued: March 6, 1998

Decided: August 10, 1998

Before MURNAGHAN and WILLIAMS, Circuit Judges, and

BROADWATER, United States District Judge for the

Northern District of West Virginia, sitting by designation.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: Aron Uri Raskas, KRAMON & GRAHAM, P.A., Baltimore, Maryland, for Appellant Anthony Zenone; Gerald Chester

Ruter, Baltimore, Maryland, for Appellant Michael Zenone. Thomas

Michael DiBiagio, Assistant United States Attorney, Baltimore,

Maryland, for appellee. ON BRIEF: Andrew Jay Graham, KRAMON & GRAHAM, P.A., Baltimore, Maryland, for Appellant

Anthony Zenone. Lynne A. Battaglia, United States Attorney, Baltimore, Maryland for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Two brothers, Anthony Zenone and Michael Zenone, appeal their

convictions in the United States District Court for the District of

Maryland for several bank robberies. Anthony Zenone was convicted

by a jury of two counts of bank robbery in violation of 18 U.S.C.

§ 2113(a) and (f) and two counts of using and carrying a firearm in

connection with a crime of violence in violation of 18 U.S.C.

§ 924(c). After entering a guilty plea to a third count of bank robbery,

upon which the jury deadlocked, Anthony Zenone was sentenced to

408 months of imprisonment. Michael Zenone was convicted of two

counts of bank robbery in violation of 18 U.S.C.§ 2113(a) and (f) and

was sentenced to 144 months of imprisonment. In this consolidated

appeal, the Zenones raise nine challenges to their convictions as follows: first, that the district court erred in refusing to conduct a Franks1

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1 The decision of Franks v. Delaware, 438 U.S. 154 (1978), requires

a hearing when a defendant makes a substantial preliminary showing that

a false statement knowingly and intentionally, or with reckless disregard

for the truth, was included in an affidavit for a search warrant so as to

establish probable cause.

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hearing; second, that the district court erred in failing to suppress evidence seized pursuant to a search warrant; third, that the court failed

to suppress items seized outside the scope of the warrant; fourth, that

the district court failed to suppress the contents of a video tape seized

pursuant to the search warrant; fifth, that the district court failed to

conduct an array of shotguns before identified by witnesses; sixth,

that the district court erred as to Michael Zenone's sentence in applying a six level enhancement pursuant to U.S.S.G.§ 2B3.1(b)(2)(B);

seventh, that the district court also erred as to Michael Zenone's sentence by making a two level upward departure pursuant to U.S.S.G.

§ 5K2.3; eighth, that the district court erred in sentencing Anthony

Zenone to consecutive sentences; and ninth, that the district court

failed to change venue or sequester the jury in light of extensive pretrial publicity. Finding no reversible error in the above issues, we

affirm both convictions.

I.

The first bank robbery occurred in 1993. On September 2, 1993,

the First National Bank located in Arnold, Maryland, was robbed by

two men. When the robbers entered the bank, they were dressed in

dark business suits and wore presidential masks. The first robber wore

a President Reagan mask. The second robber wore a President Nixon

mask. Both men were armed with shotguns. One of the shotguns had

a camouflage sling. Once in the bank, the first robber approached the

teller line while the second robber remained near the front door. The

first robber then gave precise instructions about the denominations of

the currency that he wanted, that he should not be given a dye pack,

and that alarms should not be activated. He used profanity throughout

the robbery to intimidate and control the victims. After obtaining the

money, the robbers left the bank. This bank was insured by the Federal Deposit Insurance Corporation (FDIC).

The second bank robbery occurred several years later. On April 9,

1996, two men entered the Mercantile Safe Deposit and Trust Company Bank located in Baltimore, Maryland. They spoke with a teller

about banking services, apparently cashed a check, and then left. On

April 12, the two men returned and robbed the bank of $8,403.00. At

the time of the robbery, this bank's deposits were also insured by the

FDIC. During this robbery, both men entered the bank wearing dark

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ski masks over their faces and carrying shotguns. The first robber carried a modified shotgun with an attached telescopic site and magazine

extension tube. This modified shotgun had a distinct appearance,

which was visible on the bank surveillance cameras and was recognizable by the victims.

The first robber with the modified shotgun entered the bank and

announced the robbery. He screamed commands to the customers and

employees. He gave precise instructions about the denominations of

the currency that he wanted, that he should not be given a dye pack,

and that alarms should not be activated. He used profanity throughout

the robbery. The tellers then placed the money from their drawers on

the counter. Then, the first robber systematically worked his way

down the teller line taking money at each station and placing the

money into a green backpack. Before leaving the bank, the first robber again threatened the employees and customers."He again admonished the tellers and everyone in the bank against calling the police,

that he was willing and able to kill anybody who came after him."

(Joint Appendix (J.A.) at 281.)

During this robbery, the second masked robber stood in the vestibule with his back holding open the door and pointing his shotgun at

the customers and employees in the bank. As both men were leaving

the bank, the first robber threw a smoke grenade into the vestibule.

Witnesses saw the robbers leaving the bank in a blue sedan, "possibly

an Oldsmobile Cutlass with a luggage rack on the trunk lid, Maryland

license tag CHC 475." (J.A. at 62.)

The third bank robbery occurred a few weeks later. First, on April

19, 1996, one of the robbers entered the First Virginia Bank located

in Towson, Maryland and made inquiries about opening a checking

account. Then, on April 26, 1996, the two robbers returned to this

bank and robbed it of $3,543.00. At the time of the robbery, this

bank's deposits were also insured by the FDIC. Both men entered the

bank wearing dark ski masks over their faces and carrying shotguns.

Both men used the weapons similar to those utilized in the April 12,

1996 Mercantile Bank robbery. The first robber used a modified shotgun with a scope identified by the victims. This time, the first robber

also wore an ammunition belt. Both robbers were seen arriving at the

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bank in a blue sedan, "possibly an Oldsmobile or Buick bearing a

Maryland license tag number AKB 336." (J.A. at 63, 408.)

The first robber entered the bank and approached the teller line. As

he came into the lobby, he pumped a shell into the shotgun's chamber

and announced the robbery. He gave precise instructions regarding

the denominations of the currency he wanted, that he should not be

given a dye pack, and that alarms should not be activated. He used

profanity throughout the robbery.

During this robbery, the second robber also stood in the vestibule

with his back holding the door open and pointing his shotgun toward

the employees in the bank. As he was leaving the bank, the first robber stopped and told the tellers that if they called the police he would

come back to kill them. The second robber detonated a smoke grenade in the vestibule upon leaving the bank.

After investigating information that developed during the two April

1996 bank robberies, and based upon the evidence obtained, Special

Agent John W. Barry of the Federal Bureau of Investigation (FBI)

prepared a detailed twenty-nine paragraph, eight page affidavit in support of a federal search warrant. (J.A. at 61-68.) He began the affidavit with the events concerning the April 12 robbery of the Mercantile

Bank and detailed the victim's physical description of the robbers.

Importantly, Special Agent Barry recounted how bank employees

recalled that two white males came to the bank on April 9 and

appeared to pay close attention to the surveillance system and physical layout of the bank. Special Agent Barry next obtained still photographs of these two white males from the bank surveillance

videotape. After flyers were distributed to local law enforcement

agencies, a Baltimore County officer recognized Michael Zenone

from prior employment with him. Special Agent Barry then focused

his investigation upon Michael Zenone and his brother, Anthony

Zenone. Based upon additional evidence set forth in this affidavit,

Magistrate Judge Paul M. Rosenberg issued a search warrant for their

joint residence at Baltimore, Maryland.

On May 4, 1996, pursuant to this federal search warrant, the FBI

searched the joint residence of the Zenones located at 4411 Forest

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View Lane, Baltimore, Maryland. The FBI discovered the following

evidentiary items in Anthony Zenone's locked bedroom closet:

1. Remington 870 12 gauge shotgun with Weaver scope,

installed backwards, loaded magazine extension tube with

shells.

2. Ithaca 12 gauge shotgun.

3. Savage 7mm rifle.

4. Presidential mask of Ronald Reagan.

5. Camouflage ammunition sling.

6. Video tape labeled "Tony and Lynette" containing news

reports of crimes including the September 2, 1993, robbery

of the First National Bank, and several other armed robberies where the robbers used firearms and wore presidential

masks, a double murder committed in June 1995 in Baltimore County, Maryland and a murder committed in Anne

Arundel County in 1993.

The FBI then discovered following evidence located in the basement of the Zenones' joint residence:

1. Body armor.

2. Five body armor carriers.

3. Bullet proof inserts.

4. Bullet proof vest.

5. Two black ski masks.

6. Smoke grenade.

7. Maryland license plate CHC 475.

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8. Maryland license plate AKB 336.

9. Green backpack.

The FBI discovered $4,610.00 in cash in Anthony Zenone's bedroom dresser drawer. This money contained five $20 bait bills taken

during the April 26, 1996 robbery of The First Virginia Bank. Bait

bills are paper currency with previously recorded serial numbers for

identification purposes. The FBI also seized numerous other items as

listed on the warrant return which they felt had evidentiary value.

On July 31, 1996, Anthony Zenone and Michael Zenone were

indicted by a federal grand jury in Baltimore, Maryland and charged

in a superseding indictment with bank robbery in violation with 18

U.S.C. § 2113(a) and (f) and with the use and carrying of a firearm

in connection to a crime of violence in violation of 18 U.S.C.

§ 924(c). The Zenones were charged with all three bank robberies.

The Zenones' first trial began on September 30, 1996 and concluded on October 7, 1996. Anthony Zenone was convicted of robbing the Mercantile Bank on April 12, 1996 and using a shotgun in

connection with this offense (Counts Three and Four of the superseding indictment) and was also convicted of robbing the First Virginia

Bank on April 26, 1996 as well as using a shotgun in connection with

this offense (Counts Five and Six). The jury did not reach a verdict

on Counts One and Two relating to the 1993 bank robbery. On

December 13, 1996, Anthony Zenone plead guilty to robbing the First

National Bank on September 2, 1993 (Count One) and the use of

weapons charge related to this robbery was dismissed (Count Two).

On October 7, 1996, the jury acquitted Michael Zenone on Counts

One and Two of the superseding indictment relating to the 1993 bank

robbery. The jury was unable to reach a verdict on the remaining

counts against him. On December 9, 1996, Michael Zenone was

retried. On December 11, 1996, Michael Zenone was convicted of

robbing the Mercantile Bank on April 12, 1996 and the First Virginia

Bank on April 26, 1996. (Counts Three and Five). He was acquitted

of Counts Four and Six relating to the use of a shotgun during these

robberies.

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II.

The first four issues raised by the Zenones all relate to the search

warrant executed at their residence on May 4, 1996. The Zenones

argue that the evidence seized should be suppressed. The parties do

not dispute that when testing the sufficiency of a search warrant and

its supporting affidavit, the standard of review is de novo. United

States v. Wilhelm, 80 F.3d 116, 118 (4th Cir. 1989); see also United

States v. Hodges, 705 F.2d 106 (4th Cir. 1983). In this review, great

deference is to be given to a magistrate's assessment of facts when

making a determination of probable cause. United States v. Jones, 31

F.3d 1304, 1313 (4th Cir. 1994).

A.

The issues raised by the requested Franks hearing and the alleged

failure to suppress the search warrant are intertwined. Accordingly,

they will be addressed together.

In Franks v. Delaware, 438 U.S. 154, 155 (1978), the Supreme

Court considered the issue of whether a criminal defendant has the

right to challenge the truthfulness of factual statements made in affidavits filed in support of a search warrant. The Supreme Court held

that "[w]here the defendant makes a substantial preliminary showing

that a false statement knowingly and intentionally, or with reckless

disregard for the truth, was included by the affidavit in the warrant

affidavit, and if the allegedly false statement is necessary to the finding of probable cause, the Fourth Amendment requires that a hearing

be held at the defendant's request." Id. at 155-56. Further, we have

recognized that "Franks protects against omissions that are designed

to mislead, or that are made in reckless disregard of whether they

would mislead, the magistrate." United States v. Colkley, 899 F.2d

297, 301 (4th Cir. 1990).

The district court in this case ruled upon the Zenones' request for

a Franks hearing and the motion to suppress in a Memorandum and

Order entered on August 23, 1996. In paragraphs 4 and 6 of that

order, the district court considered and rejected their contentions.

(J.A. at 162-63.) Anthony Zenone again raised the Franks issue at a

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pretrial hearing held on September 30, 1996. The district court again

considered and rejected the basis for the request.

As discussed above, on a challenge to the sufficiency of a search

warrant affidavit, the reviewing court accords "great deference" to the

issuing magistrate's determination. United States v. Clyburn, 24 F.3d

613, 617 (4th Cir. 1994). A reviewing court is to simply ensure that

the magistrate judge had a substantial basis for concluding that probable cause existed and not to second-guess the magistrate judge. Jones,

31 F.3d at 1313.

The Zenones assert that they met the requirements for a Franks

hearing. First, as to the four alleged false statements in the search

warrant, the Zenones claim a showing of an "offer of proof" "accompanied by a statement of supporting reasons." Franks, 438 U.S. at

171. Second, the Zenones argue that they have shown that the four

false statements were essential to the probable cause determination.

After reviewing the record, we conclude that the grounds relied upon

by the Zenones do not establish any intentional or material misrepresentations.

The first of the four alleged false statements concerns whether the

defendants were checking the physical layout and surveillance systems of the Mercantile Bank on April 9, 1996 in preparation of the

robbery or were there legitimately conducting banking business.2 The

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2 This first alleged false statement comes from paragraph 5 of Special

Agent Barry's affidavit dated May 3, 1996. This paragraph states as follows:

 5. Investigation incidental to this last robbery disclosed that

on Tuesday, April 9, 1996, that two white males entered the

above described bank seeking information regarding the establishment of a checking account. Both men spoke to tellers at the

teller counter area. These individuals were subsequently located

on bank surveillance video tape, which had been obtained as a

result of the robbery. The bank surveillance film, as well as still

images, were reviewed with the appropriate bank employees,

who recalled that neither of the men conducted any bank business, and that both men appeared to pay particular attention to

the surveillance system and physical layout of the bank. (J.A. at

62.)

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Court concludes that this merely reflects a disagreement of interpretation. As well, the government did not learn that the teller failed to

mention that Anthony Zenone cashed a check during this visit until

the Zenones' pretrial memorandum was filed on July 2, 1996.

We also conclude that this same disputed interpretation of events

applies to the second statement questioned by the Zenones in the affidavit. This statement concerns whether Michael Zenone engaged in

counter-surveillance techniques in May, 1996 when the FBI was

investigating the Zenones.3 This does not establish an intentional or

material misrepresentation.

The third area of alleged false statements concerns the description

of the getaway car and the vehicle owned by Anthony Zenone.4 A

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3 Paragraph 16 of Special Agent Barry's affidavit states as follows:

 16. On May 5, 1996, Michael Zenone was followed from his

place of employment to his home. While in route, he demonstrated numerous counter surveillance techniques. He repeatedly

made U-turns, drove 20 miles per hour under the posted speed

limit, and randomly pulled into parking lots along his route only

to pull out into traffic after several minutes. On April 30, 1996,

Anthony Zenone demonstrated similar counter surveillance techniques, entering parking lots and proceeding down dead end

roads. (J. A. at 65.)

4 The descriptions of the vehicles are contained in several paragraphs

of Special Agent Barry's affidavit as follows:

Paragraph 3: Witnesses at the bank [Mercantile] observed two

robbers enter into a blue, four door sedan, possibly an Oldsmobile Cutlass with a luggage rack on the trunk lid, Maryland

license tag CHC475. (J.A. at 62.)

Paragraph 6 in part: The robbers were observed by witnesses,

both prior to entering the bank [First Virginia] and after exiting

the bank, to be operating a blue colored sedan, possibly an Oldsmobile or Buick, bearing a Maryland license tag number

AKB336. (J.A. at 63.)

Paragraph 14 in part: Anthony Zenone is a registered owner of

a 1994 Oldsmobile, four door sedan, Maryland registration

CNH458, at 4411 Forest View Avenue, Baltimore, Maryland.

(J.A. at 63.)

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reading of the affidavit shows no direct assertion that the vehicle used

in the bank robberies was actually owned by Anthony Zenone. While

the Zenones concede that the make and model of the vehicle used in

the robberies was similar to Anthony Zenone's vehicle, they claim

that these statements were a material misrepresentation because the

affidavit failed to disclose that the color of the vehicles was different.

Anthony Zenone's car was red and also did not have a luggage rack.

As well, Michael Zenone owned a blue-grey Chrysler Lebaron. We

find no material misrepresentation from these statements as they are

Special Agent Barry's statements concerning the similarity of both

vehicles.

The fourth statement concerns whether Anthony Zenone failed to

work on the days of the two robberies in April 1996. Special Agent

Barry stated in his affidavit that Anthony Zenone, although scheduled

to work on both days, did not show up for work. The government

points out, and the Zenones do not contradict, that this assertion was

not made before the district court. Therefore, the Zenones waived this

ground and are precluded from relying upon it for appeal. See Fed.

R. Crim. P. 12(f); United States v. Wilson, 115 F.3d 1185, 1190 (4th

Cir. 1997).

In this case, we conclude that probable cause existed to support the

issuance of a search warrant for the Zenone residence. Special Agent

Barry's detailed affidavit provided a wealth of facts linking the

Zenones to the commission of the two April 1996 bank robberies. The

required nexus for probable cause between the place to be searched

and the evidence of criminal activity to be seized was clearly shown.

United States v. Williams, 974 F.2d 480, 481-82 (4th Cir. 1992). For

these reasons, we conclude that the district court properly denied the

Franks hearing and the motion to suppress.

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Paragraph 24: Witnesses at the April 12, 1996 bank robbery

(described in Paragraph 1) observed two robbers enter into a

blue, four door sedan, possibly an Oldsmobile Cutlass with a

luggage rack on the trunk lid, Maryland license tag CHC475.

(J.A. at 67.)

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B.

The Zenones next assert that the district court should have suppressed items they claim were seized outside the scope of the search

warrant. The Zenones claim that the FBI agents acted with flagrant

disregard for the warrant and transformed a particularized warrant

into a general, unrestricted search, requiring therefore, that all of the

evidence seized be suppressed. Jones, 31 F.3d at 1314; United States

v. Borromeo, 954 F.2d 245, 246 (4th Cir. 1992). In this regard, the

Zenones assert that the voluminous return of items seized pursuant to

the search warrant support this contention.

The district court rejected the Zenones' contentions before trial.

The district court ruled that the items were seized in plain view during

the execution of a valid search warrant and were either contraband or

fruits of criminal activity. Many of the listed items were clearly the

fruits of criminal activity as they remained in original packaging with

store labels attached. The district court relied on United States v.

Legg, 18 F.3d 240, 242 (4th Cir. 1994), which upheld the seizure of

a pistol found in plain view during the search of an apartment pursuant to a warrant.

In order to justify a warrantless seizure under the plain view doctrine, three conditions must be met. First, the seizing officer must be

lawfully present on the premises. Second, the officer must have a lawful right of access to the object itself. Third, the object's incriminating

character must be immediately apparent. United States v. Wells, 98

F.3d 808, 809-10 (4th Cir. 1996). As did the district court, we conclude that the evidence shows that all three conditions were met. As

well, the government also points out that since those items were not

introduced into evidence at trial, it does not affect the admissibility

of other relevant evidence legally seized. See Jones, 31 F.3d at 1314.

C.

Last, the Zenones contend that two video tapes were also illegally

seized at their residence. The Zenones argue that the district court was

required to suppress evidence used by the government in its case in

chief that was "seized without scrupulous adherence to the warrant...."

United States v. Heldt, 668 F.2d 1238, 1260 & n. 33 (D.C. Cir. 1981);

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Borromeo, 954 F.2d at 245. Specifically, Anthony Zenone argues that

the district court erred when it denied his motion to suppress the first

video tape labeled "Tony and Lynette," which was seized from his

locked bedroom closet. Michael Zenone also complains that the district court erred when it failed to suppress a second video tape labeled

"Mom and Dad's Copy," which was also seized from a closet.

The government contends that the criminal character of the first

video tape was immediately apparent once viewed. This tape contained televisions news stories about the bank robberies in question.

The government further contends that the second video tape was relevant in that it showed Michael Zenone's unlimited access to areas

within the residence. Specifically, the tape also demonstrated his

access to the basement where several items of evidence were found

linking him to the two bank robberies.

In citing United States v. Lowe, 50 F.3d 604, 607 (8th Cir. 1995),

the district court held that the "seizure and reviewing of the videotapes from the residence was plainly authorized by the warrant and

lawful, given their location and their tendency to link the defendant

to the place to be searched." (J.A. at 164-65.) The government points

out that the video tapes were the only items found in each closet and

that each video tape linked the defendants to the residence. The government also relies on Lowe which held that the search and seizure

of a video tape was authorized by the warrant as an item that linked

the defendant therein with the residence. We also agree with the district court's ruling on that basis.

III.

The Zenones next contend that the district court erred when it

refused to conduct an array, or "line-up," of the shotguns before introducing them at trial. The Zenones point out that the government relied

upon eye-witness identification of the distinct weapons the robbers

used to link the Zenones to the crimes. The government conceded at

trial that none of the victims would be able to identify the robbers

because of the masks worn during each robbery. The Zenones equate

eye-witness identification of individuals with that of physical objects

such as the shotguns. The Zenones assert that a criminal defendant

has a due process right to prevent suggestive police identification pro-

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cedures that create "a very substantial likelihood of irreparable misidentification." United States v. Concepcion , 983 F.2d 369, 377 (2d

Cir. 1992). Concepcion involved the identification of a defendant

within minutes of a shooting by a show-up at a hospital. The Zenones

do not cite any specific authority for a line-up of physical objects.

The government counters that a defendant's due process right to

reliable identification procedures does not extend beyond normal

authenticity and identification procedures for physical evidence.

Johnson v. Sublett, 63 F.3d 926, 932 (9th Cir. 1995) (holding that

while this argument deserves credit for creativity, there is no authority

for a defendant's asserted due process right to reliable identification

procedures beyond normal authenticity and identification procedures).

Johnson concerned a victim's in-court identification of an automobile

used to carry a victim in the course of a kidnaping. Id.

Therefore, the government maintains that this issue relates to an

evidentiary ruling. Thus, the standard of review is whether the district

court abused its discretion in admitting testimony of the similarity of

the shotguns found at the Zenones' residence with those used in the

robberies. United States v. Brooks, 111 F.3d 365, 371 (4th Cir. 1997)

(evidentiary rulings are reviewed for abuse of discretion and are subject to harmless error review). As the Zenones did not present any

other argument or decisions to support reversal of the district court's

evidentiary decision, we affirm on this issue.

IV.

Michael Zenone asserts two errors concerning the application of

the United States Sentencing Guidelines (U.S.S.G.) to his sentence.

The first concerns the district court's findings as to the use of a shotgun during the robberies. The second concerns the district court's

upward departure based upon psychological injury to the victims.

A.

Specifically, Michael Zenone objects to the district court's findings

relating to the use of a firearm during the commission of a crime.

U.S.S.G. § 2B3.1 assigns robbery a base offense level of 20. This

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base level is increased six levels if a firearm was otherwise used.

U.S.S.G. § 2B3.1(b)(2)(B). He claims that the facts support a five

level enhancement for brandishing a deadly weapon under U.S.S.C.

§ 2B3.1(b)(2)(C). Michael Zenone does not rely on any decisions of

this Court. His counsel cites United States v. Matthews, 20 F.3d 538

(2nd Cir. 1994) (holding that implicit threat coupled with literal

explicit threat that may constitute additional conduct, but does not

constitute additional use of weapon for guideline purposes).

In reviewing the application of the guidelines by the district court,

we examine factual determinations for clear error. United States v.

Blake, 81 F.3d 498, 503 (4th Cir. 1996). Further, legal questions are

subject to a de novo standard of review. Id.; see also United States

v. Singh, 54 F.3d 1182, 1190 (4th Cir. 1995).

Prior to sentencing, the district court rejected Michael Zenone's

argument based on brandishing. The Court found that Michael

Zenone's conduct went "far beyond mere brandishing of a weapon,

to actual menacing of the tellers with very frightening weapons at

close range, with death threats." (J.A. at 206.) At sentencing, the district court further found that when a shotgun is"pointed at somebody,

... together with death threats ... either before or at the moment [the

shotguns] were brandished, ... especially [with] very crude threats

with violent and profane language..." the acts are beyond mere brandishing and justify a six level increase. (J.A. at 649.)

A review of the record indicates that the district court's findings of

fact were not clearly erroneous. Moreover, we agree that Michael

Zenone's conduct, i.e., pointing his shotgun at a teller and threatening

to kill her, went beyond mere brandishing. See United States v.

Fuller, 99 F.3d 926, 927 (9th Cir. 1996) (holding that "pointing [a]

firearm at [a] teller and explicitly threatening to kill her . . . exceeded

mere brandishing"); United States v. Seavoy , 995 F.2d 1414, 1422

(7th Cir. 1993) (holding that "pointing of a firearm, combined with

an explicit threat" constitutes "otherwise using"); United States v.

Johnson, 931 F.2d 238, 240 (3d Cir. 1991) (leveling a firearm at a

victim's head and threatening to discharge it properly classified as

"otherwise using" a firearm). But see Matthews, 20 F.3d at 554 (holding that "an explicit verbal threat may constitute additional conduct,

but it does not, in our view, constitute additional use of the weapon").

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Therefore, the district court did not err in finding that Michael Zenone

"otherwise used" a firearm.

B.

Michael Zenone alleges error concerning the district court's two

level upward departure. This departure was based upon the district

court's application of U.S.S.G. § 5K2.3 in finding that Michael

Zenone's conduct caused extreme psychological injury to several robbery victims. As above, the same two part inquiry and standard of

review apply to this assignment of error.

At the sentencing hearing, the government presented five victim

impact statements and the testimony of three victim tellers. This compelling evidence detailed substantial emotional, behavioral, and psychological impairment of these victims. Based upon the severity of

the psychological injury described by these witnesses and the district

court's findings of the intent or knowing risks of such injury by

Michael Zenone's actions, the district court decided it was within its

discretion in ruling a two level upward departure pursuant to U.S.S.G.

§ 5K2.3.

The standard of review of the district court's decision on the application of the sentencing guidelines point is a two part inquiry. The

first part concerns the district court's findings of fact, reviewed under

a clear error standard; the second part involves the application of the

guideline in question, being an abuse of discretion standard. United

States v. Barber, 119 F.3d 276, 282 (4th Cir. 1997), cert. denied, 118

S.Ct. 457 (1997); United States v. Achiekwelu , 112 F.3d 747, 755-56

(4th Cir. 1997), cert. denied, 118 S.Ct. 250 (1997).

We find that the record indicates that an upward departure was

authorized in this case. See United States v. Gary, 18 F.3d 1123, 1129

(4th Cir. 1994) (citing that district court's determination under

U.S.S.G. § 5K2.3 is to be given considerable deference). The district

court's findings of fact and weighing of guideline factors do not indicate an abuse of discretion. Again, the procedures used were consistent with those established in Koon.

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V.

Anthony Zenone challenges the district court's application of consecutive sentences under 18 U.S.C. § 924(c). The basis of this challenge is the assertion that both offenses were one continuing criminal

scheme. He takes exception to this Court's holding in United States

v. Camps, 32 F.3d 102, 206 (4th Cir. 1994). Camps held that a defendant who has used a firearm on "several separate occasions during the

course of a single continuing offense ... has committed several

§ 924(c)(1) offenses." Id. He relies on opposite holdings by several

other circuits. See, e.g., United States v. Anderson, 59 F.3d 1323

(D.C. Cir. 1995); United States v. Lindsay, 985 F.2d 666 (2nd Cir.

1993); United States v. Sims, 975 F.2d 1225 (6th Cir. 1992).

The issues raised by Anthony Zenone involve questions of law, and

the standard of review is de novo. United States v. Childress, 104 F.3d

47, 49 (4th Cir. 1996). The record in this case clearly indicates

Anthony Zenone's participation in two bank robberies. These two

bank robberies occurred two weeks apart. Therefore, we concur that

the district court was authorized to impose two consecutive sentences.

See 18 U.S.C. § 924(c); Deal v. United States, 508 U.S. 129, 131

(1993) (upholding district court's consecutive sentences for six bank

robberies on different dates and six counts of carrying and using a

firearm during each robbery).

VI.

Last, Anthony Zenone asserts error based upon the district court's

denial of his motion for a change of venue or for sequestration of

jurors. Anthony Zenone relies upon the allegation that pretrial publicity threatened his due process right to a fair trial which, at least,

required the sequestration of jurors. United States v. Concemi, 957

F.2d 942, 946 (1st Cir. 1992). In affirming the conviction, the First

Circuit in Concemi noted that sequestration was an extreme measure

to control prejudicial information and stated that the district court still

has the option to instruct the jury to avoid the publicity. Id.

The district court followed the required two-step analysis concerning a change of venue. United States v. Bailey , 112 F.3d 758, 769 (4th

Cir. 1997), cert. denied, 118 S. Ct. 240 (1997). First, the district court

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considered whether the publicity was so inherently prejudicial that the

trial process would be tainted. Id. The district court found that the

publicity did not rise to the level of being inherently prejudicial. Second, the district court conducted voir dire examination of prospective

jurors to determine if actual prejudice existed. Id. Apparently, only

one juror was excused based upon extensive exposure to news

reports. Thereafter, the district court admonished the jury to avoid

news reports. As well, the district court inquired as to such news

report exposure each morning before the start of trial. Therefore, the

district court did not abuse its discretion in denying this motion.

VII.

For the foregoing reasons, both convictions and sentences are

affirmed.

AFFIRMED

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